Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 5.

Of a Plea of Land.

A Reall praecipe quod reddat, is that which is for reall things in render. And is a plea of land or other such reall precipe

A plea of land which is for land or other such things in demesne, where land in cer∣taine is demanded, it must alwayes bee brought in a ville, or place knowne out of any ville And not in a hamlet which is par∣cell of a vill. But personall actions, as tres∣passe, and such like, may be in a hamlet. So of Dower and Assise, for there no land in certaine is demanded; and also in an assise, he shall recouer by view of the Iurie. So in a Scire facias out of a fine nuper obijt, a Writ of mesne, couenant, wast, quare impedit. These may be in a Hamlet. Otherwise it is of a Writ of right of Aduowson.

A plea of land is a Writ of Entrie, or a writ shewing the demandants title.

A writ of Entrie is that which is to disprooue the Tenants possession by the meanes of his entrie.

Wherein Tenant in fee simple deman∣ding * 1.1 of the possession of his ancestor shall say in the writ, Quod clamat esse ius & here∣ditatem suam. Tenant in Taile or for life, shall not so. But in his declaration set forth * 1.2

his speciall estate.

A Writ of Entrie is either against the first partie, or in the degrees.

Against the first party, when it is against him to whom the first allienation was, or that made the first disseisin.

That in the degrees, is in the Per, or in the Per and Cui.

In the Per, when he against whom it is brought commeth in immediatly vnder the first partie, as heire vnto him, or by alie∣nation from him.

In the Per & Cui, when he against whom it is brought commeth in immediatly vnder the first parties heire or allience: For if more then these two alienations (the Per, or the Per and Cui) passe, the demandant is driuen to his writ of right. And the reason is, that there may be an end of suits. For no Writ of Entrie in the Post lay at the Com∣mon Law. But the same is giuen by the sta∣tute of Marlebridge. cap. 29. Which writ of Entry in the Post giuen now by that Sta∣tute, lyeth when hee against whom it is brought commeth in neither in the Per not Per and Cui, then the Writ shall be In quod, &c: nisi post dimissionem, &c. Out of all degrees, as by abatement, disseisin, eschete, recouerie, Election, Succession, Dower, Iudgement, &c. or as the third or more feffees.

The forme of all which is thus In a writ of Entrie, in the nature of an Assise, against the partie himselfe that did the disseisin,

Praecipe A. quod reddat B. vnum Messuagium, &c. de quo A. iniuste et sine Iudicia disseisiuit B. &c. or in the other forme disseisiuit C. pa∣trem, or other ancestor of B. cuius heres ipse est, &c. In the Per thus. In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui iniuste B. &c. (or in the other forme) qui iniuste, &c. E. patrem, &c praedict. B. &c. In the Per and Cui thus. In quod, &c. nisi per C. cui D. illud dimisit qui inde iniuste B. or (in the second forme) qui iniuste E. patrem, &c. praed. B. In the post thus. In quod, &c. nisi post dis∣seisinā quam D. iniuste fecit praed. B. or (in the other forme) iniuste fecit E. patri, &c. praed. B. &c. In such like manner it is of a Dum fuit infra aetatem, and of all other Writs of En∣trie vpon an alienation. Marleb. cap. 29.

Writs of Entrie grow either without wrong at the first, or vpon a wrong.

Those without a wrong at the first, are grounded vpon a determination of the first estate, or a dishabilitie in the person that made it.

Vpon a determination of the estate, ei∣ther by reason of a particular estate ended, or a condition broken.

Of a particular estate ended is an ad ter∣minum qui praeterijt, or Entre ad Communem Legem.

Ad terminum qui praeterijt, is vpon a de∣forcement by the lessee or a stranger after a Lease for yeares, or life expired, whether the Lessee did allien, or not. But not after

the death of Tenant in Dower, or by Cur∣tesie, for that is not properly called a Terme

Entrie ad communem legem, is when te∣nant for life, be it his owne or anothers life, tenant in Dower or by curtesie of England doth alien and die, and hee in the reuersion for life, may haue this writ.

Of a condition broken, as Causa matri∣monij praelocuti. Causa matrimonij pralocuti, is for a woman that giueth land to a man to marrie her, and he will not: but it lyeth not for a man that giueth lands to a woman.

Grounded vpon the disabilitie, are a Dum fuit infra aetatem, and a Dum non fuit compos mentis.

Dum fuit infra aetatem is by the infant, when he commeth to his full age, vpon an alienation by himselfe, or his auncestor, be∣ing within age.

But the clause that he is of full age, viz. qui plenae est aetatis, shal not be inserted in the Writ, if either it be brought in the degrees Per, cui, or post, or vpon the ancestors alie∣nation.

Dum non fuit compos mentis, is vpon the alienation of himselfe, or his ancestors be∣ing of non sane memorie.

Those vpon a wrong at the first are ei∣ther vpon a discontinuance, or an ouster.

Vpon a discontinuance, as a Cui in vita, or a Sine assensu capituli.

A Cui in vita, for the wife after the hus∣bands death vpon his alienation of her fee simple, fee taile, or freehold, whether

whether dower or otherwise, or of such a ioynt estate in them.

And in this writ claiming a fee simple, but not an estate Taile or a freehold, for there the Writ shall make speciall mention of the estate, she shall say, Quod clamat esse ius et hereditatem suam, though it be of her owne possession.

Statutes.

Westm̄ 2. cap. 3. A cui in vita giuen to the wife after her husbands death, vpon his losing of the land by default. And the Te∣nant that recouered against her husband must maintaine his owne right.

If it be an estate of fee simple, and she bring not in her life time a cui in vita, the heire shall haue a Sur cui vita. But of an e∣state taile onely, a formedon lyeth in this case for the heire.

And of this nature is a cui ante diuorti∣um, when it is brought by the wife after diuorcement, vpon such an alienation as before.

A fine assensu capituli is for the Succes∣sor of a Bishop, Abbot, Prior, Deane, Prebendarie, or Master of any Hospitall after the discontinuance of the Predeces∣sor, viz. when they alien the lands they haue in the right of their Church, house, Abbey, or Priorie, without the consent of their couent, Chapter, or Confrers, &c.

Vpon an ouster, or either vpon an in∣trusion or a disseisin.

That vpon an intrusion is called a writ of intrusion, and is for him in the reuersion or remainder in fee simple, or for life, not in taile (for hee shall haue a formedon) nor for yeares, because he hath not the freehold, after the death of tenant for life in Dower, or by curtesie.

And if land bee giuen to two, and the heires of one, and hee that hath fee dyeth, and after him tenant for life dyeth. Now the heire of him in the remainder shal haue this writ. And it lyeth also for the assignee of the assignee of him in the remain∣der.

Vpon a disseisin, is when the disseisin is done to him or his Ancestors. As a writ of Entrie in the Quibus; or which is all one in the nature of an Assise.

Writs that shew the demandants title, are meere possessorie, or in the right.

Meere possessorie are those which are brought by the next heire vpon an abate∣ment after the death of any auncester, other then his father, mother, brother, sister, vn∣cle, Aunt, Nephew, Neice, for vpon an a∣batement after the death of any such aun∣cestor, an Assise of mortdauncestor lyeth as shall appeare afterwards: seised in demesne as of a fee simple the day of his death, though hee were disseised the very same day, and so died not seised at all. Of this nature are,

A Writ of Ayell after the death of his grandfather or grandmother.

A writ of Besayel after his great grand∣father or grandmother.

I writ of Cosinage after the death of his great great grandfather or grandmo∣ther, or any other collaterall Cosin, as the great great grandfathers brother.

Statutes.

Westm̄ 2 cap. 20. In a Writ of Cosinage, Ayell, and Besayell, the point shall bee en∣quired whether the demaundant bee next heire aswell as in a mortdauncester.

In the right, is that which is to dis∣proue the right of the Tenant, and is a Writ of right in his nature, or a Praecipe in Capite.

A Writ of right in his nature which sheweth how the demaundants right is growne. And is a formdon or a writ of Es∣chete and Dower, vnde nihil habet.

A Formdon is a Praecipe quod reddat, entitling the partie by the forme of the gift.

And is a formedon in remaynder, or a Formedon in reuerter: for a formedon in descender lyeth not at the Common Law, but is giuen by the Staute of Westm̄ 2. * 1.3 cap. 1.

A Formedon in remaynder is for him in the remaynder for (a) 1.4 life, or in (b) 1.5 fee vpon a Lease for (c) 1.6 life expired. For after an

estate taile expired, it lay not at the Com∣mon Law: because it was a fee simple, whereupon a remainder could not depend.

A formdon in reuerter is for the donor * 1.7 alter the issue in taile determined, as at the Common Law, if the donee alien before issue had, and after die without issue: or if he haue issue, and after he or his issue dye without issue. Contrarie it is if he had issue and then had aliened, and dyed without issue.

A writ of Eschete is for the Lord that hath a seigniorie in fee, or for life vpon an eschete.

Dower, vnde nihil habet, is a writ for * 1.8 ones dower, which hath receiued no part at all of it.

Statutes.

Westm 1. cap. 48. A writ of dower vnde nihil habet, shall not abate though she haue receiued part of her dower before the writ purchased, vnlesse it were of the same par∣tie against whom the writ is brought, and in the same Towne.

A writ of dower lyeth against gardein * 1.9 by knight seruice, though he be not tenant of the freehold.

A praecipe in capite is a praecipe quod red∣dat, for the meere right: and therefore lieth * 1.10 onely for Tenant in fee simple of lands holden in Chiefe.

Statutes.

Washm̄ 2. cap. 4. In place of a writ of right, a Quod ei deforceat is giuen to Te∣nants for life or in taile vpon loosing by default.

Notes

• * 1.1

  Old N. B. 124. Fit. N B. 201 •• & f.
• * 1.2

  Fit. N••t Br. ibid.
• * 1.3

  Old Nat. Br. {per} Br. Formd 69. 3. El. Pl 235.
• (a) 1.4

  Old Nat. Br. 148. 149.
• (b) 1.5

  F. N. B. 217. d.
• (c) 1.6

  Fitz. ibid.
• * 1.7

  Fit. N Br. 219. c. 30. E. 1. formd. 65.
• * 1.8

  Old Nat. Br. 6.
• * 1.9

  Br. pr••••. qd rodd. 35
• * 1.10

  Fit. Nat. Br. 5. f.